McDonald's Sued By Devo Over Happy Meal Toy

By JaySlatkinJune 27, 2008

The band Devo is suing McDonald’s over a toy which bears a striking resemblance to the band’s signature look made popular in the 80’s. The “American Idol” series of happy-meal toys features plastic characters that play their own little tune when activated. “New Wave Nigel” depicts a character wearing the band’s famous “energy dome” and even plays a song that sounds Devo-esque. Unfortunately for McDonald’s, that little hat is copyrighted and trademarked, according to Rolling Stone. Details, inside…

Stuff’s article says,

“They didn’t ask us anything. Plus, we don’t like McDonald’s, and we don’t like American Idol, so we’re doubly offended,” said bass player Gerard Casale.

Comment was being sought from McDonald’s.

Devo, who formed in Akron, Ohio, in 1974, are famous for their 1980 hit Whip It, and are credited with helping to usher in the synth pop sound of the 1980s.

The name Devo comes from “de-evolution” – the idea that instead of evolving, mankind has actually regressed.

Casale said it was ironic the world’s largest fast food chain should appropriate the image of a band known for taking aim at the dysfunction and herd mentality of American society.

“The very same people that wanted nothing to do with Devo and looked down on Devo and condescended (to) Devo… enough time’s gone by that they go, ‘Hey, you know those guys are synonymous with what was new about New Wave,”‘ he said.

Comments

Edit Your Comment

I thought it looked exactly like old-school Devo when I first saw a picture of it a few weeks ago. I haven’t actually heard the music the toy plays, but some folks on Fark say it sound just like their song from “Dr. Detroit.”

For all the corporate evil, that’s a pretty huge oversight on the part of McDonald’s – whoever dropped that particular ball will be fired like they’ve never been fired before, because that’s a lawsuit they cannot win.

@richcreamerybutter: I don’t think it’s douchery. It just sounds like Mickey D’s was trying to create an archetypal image of “New Wave” and used an image that, unknown to them, was trademarked.

And yeah, Gerard, countercultural music and movements tend to become more mainstream-acceptable and less threatening over time. Hence why nowadays Johnny Rotten is doing reality shows and Slash is duetting with Fergie.

just goes to prove how crappy the copyright laws are. When was the hat designed? 28 years ago? This should be in the public domain by now. Too bad it’s been bastardized to mean the life of the artist plus 70 years.

I’m not saying I’m on McDonald’s side, I’m sure they are copyright whores as well.

@Superawesomerad: I don’t believe for a SECOND this campaign didn’t raise the eyebrows of their internal legal department or any of the agencies they might have employed for product development and marketing. SOMEONE within a corporation this size knew immediately this wouldn’t fly, and they decided to take their chances anyway.

@bizzz: just goes to prove how crappy the copyright laws are. When was the hat designed? 28 years ago? This should be in the public domain by now.

Does this go both ways? Will Devo be able to freely use familiar configurations of golden arches on their next album (maybe they can collaborate with Nevativland)?

I’d think McDonald’s desire to use this imagery is a testament to its effectiveness, so I’m curious as to why you would arbitrarily advocate that the hat be submitted for public domain? Also, public domain for what purpose? For corporations to profit?

It kills me that two corporations in the past week have tried to get away with this shit on the grounds of “parody” and “the first amendment” (and it will be amusing to see how MickeyD responds in this case). The latter especially is not justification for businesses to line their pockets.

@JaguarChick: cocky indeed…I would LOVE to see the email chains on this issue, and who was selectively CCed and blind CCed. I can guarantee someone feels a little ill right now, and that others are just relieved there’s an electronic trail with their typed concerns, or they didn’t have the final call.

I have to say, using imagery that was only EVER associated with Devo (the “Energy Dome” hats) is a pretty dumb way for McDonalds to evoke a general “new wave” vibe. It’s not like the Energy Domes were being worn by every New Wave kid in the mall — they were being worn by Devo, and that’s it. Hell, the ‘suit’ the toy is wearing is also reminiscent of the fallout suits Devo wore. Did McDonalds’ marketing division just find a photo of Mark Mothersbaugh and run with it, or what? Sorry, but they were unsure about trademark issues, somebody could’ve asked SOMEBODY who remembered the far-off days of the early ’80s, and asked them what the deal was with the crazy hats.

Devo’s still using and marketing the Energy Dome imagery, though — they’re still an active (though admittedly not constant) presence in music and, more important for our discussion here, still an active business — should they be forced to give up a portion of their livelihood simply because of an arbitrary point after which they’ve been doing it too long? I’m not suggesting that companies have eternal trademarks or anything, but Devo’s composed of a few guys who are:

a) all still alive

b) all still playing in Devo

c) all still using the imagery in question (which they themselves created) to promote their work

I fail to see how this adds up to Devo laying claim to something that they shouldn’t.

@richcreamerybutter: No matter how evil McDonald’s may be, I highly doubt they’d “take a chance” without covering their asses at all. My money’s either on simple human error or (as r081984 said) they’re going to make a parody defense.

I don’t think so. Rolling Stone is getting this from an Australian website, and actually says Devo is “in the midst” of suing McDonald’s. So no lawsuit has been filed and this has publicity stunt written all over it.

@bizzz: When was the hat designed? 28 years ago? This should be in the public domain by now.

Even if this were a copyright issue and not a trademark issue, the original artists are still alive and producing artworks, don’t you think they should still own the rights to their own original works?

i saw DEVO last night in Brooklyn. yeah. they’re ALIVE and WELL. still wearing energy domes. and still selling them. the question ultimately lies whether DEVO copyrighted the dome.

there has been no mention of an actual lawsuit by the band yet, but we fans were all very upset upon seeing the toy a few months ago. the ultimate insult of course was being tied to american idol, a money-siphoning conglomerate that would prefer to steal icons rather than (even attempt to) compensate the original creators. no way McD’s or AI can play dumb. they knew it’s a DEVO hat.. why embed a DEVOish song to boot…

BTW… the naked cowboy was recently allowed his case forward when M&M’s ‘parodied’ him in advertising without compensation. same precedent in my eyes.

think if MADONNA (with her billion dollar estate) was parodied in this case and she was upset… McD’s would have pulled product in fear.

it has always been safer for advertising to steal from the little guy… less people will notice and the offended won’t have the funds to fight.

Wow, this is like the longest thread of comments on the Consumerist I’ve ever read where the victim isn’t being blamed. What’s the matter guys, don’t feel like being the typical asshole today? Thought you might like to be a decent human being when you woke up this morning?

A couple of people have speculated on whether or not this constitutes a parody. IMHO it does not.

Parody requires some form of commentary. Neither the visual, auditory, or packaging of that toy indicates to me a comment of any type, simply recreating a look. If I use the McDonald’s logo in place of the prongs of the devil’s pitchfork, you could reasonably say I’m commenting on them. If I make a doll of Ronald McDonald whose purpose is simply to replicate the Ronald McDonald “look,” then it’s trademark infringement. If someone can point out a commentary about Devo made by the doll, then do so. No comment = no parody.

I’m kind of late to the party here, and while I loved the Devo of the past, I am surprised none of the previous 54 commenters mentioned anything about “Swiff it.. Swiff it good.” That just makes me want to vomit.

No great fondness of Devo 2.0 here either. Their songs were originally social commentaries and the band cashed in and changed the lyrics so that the Walt Disney company could whore some of the great songs of the 80’s out to kids who have no idea about their historical importance or sociopolitical underpinnings.

Sounds like the Devo of the 2000’s only lives by their past ethics when they stand to profit. It’s sad.

@Aaron Feibus: If I’ve been entertained in the past by an artist, I won’t hold it against them if they choose to “sell out” in the future and maybe ensure some kind of retirement plan for themselves. They’re not the Rolling Stones, so who knows how it worked out for them in terms of royalties? A lot of the artists you assume are raking it in simply aren’t.

@Superawesomerad: If you really think “human error” is possible within the legal department this kind of corporation, then I find your ingenuousness kind of adorable.

@richcreamerybutter: Indeed. An artist can decide to whore him/herself out, and though I might be disappointed, it’s not my call. Considering how lousy many recording artists are compensated for their recorded works, if they can squeeze a few bucks out, I’m okay with that. But somebody else doesn’t get to swipe their work if they feel like it.

it’ s extremely hypocritical of them to blatantly attempt to appropriate something recognized as being associated with a well known musical group, not surprising though. Glad Devo had the foresight to trademark their distinctive look – hope they take McDonald’s for every penny they can wring out of them!